THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW GOLAN V. HOLDER: COPYRIGHT IN THE IMAGE OF THE FIRST AMENDMENT DAVID L. LANGE, RISA J. WEAVER & SHIVEH ROXANA REED ABSTRACT Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign works previously thought to belong to the public domain. The Tenth Circuit upheld the legislation, but not without noting that it appeared to raise important First Amendment concerns. The Supreme Court granted certiorari. This article addresses the issues in the Golan case, literally on the eve of oral argument before the Court. This article first considers the Copyright and Treaty Clauses, and then addresses the relationship between copyright and the First Amendment. The discussion endorses an understanding of that relationship in which the Amendment is newly seen as paramount, and copyright is newly seen in the image of the Amendment. Copyright © 2011 The John Marshall Law School Cite as David L. Lange, Risa J. Weaver & Shiveh Roxana Reed, Golan v. Holder: Copyright in the Image of the First Amendment, 11 J. MARSHALL REV. INTELL. PROP. L. 83 (2011). GOLAN V. HOLDER: COPYRIGHT IN THE IMAGE OF THE FIRST AMENDMENT DAVID L. LANGE, RISA J. WEAVER & SHIVEH ROXANA REED INTRODUCTION .................................................................................................................. 84 I. BACKGROUND ................................................................................................................ 85 II. GOLAN’S SLOW MARCH TO THE SUPREME COURT ........................................................ 88 A. The First District Court Opinion ....................................................................... 88 B. The First Tenth Circuit Opinion ........................................................................ 89 C. The Second District Court Opinion .................................................................... 91 D. The Second Tenth Circuit Opinion .................................................................... 94 III. ARGUMENTS BEFORE THE SUPREME COURT .............................................................. 95 A. Whether Section 514 Violates the Copyright Clause. ....................................... 97 1. Does the Text of the Copyright Clause Prohibit Removal of Works from the Public Domain? ............................................................................. 98 2. Did the Framers Intend to Create a Permanent and Stable Public Domain from Which Works Could Not Be Removed? .............................. 100 3. Does Historical Practice Confirm that Congress Cannot Restore Copyrights to Public Domain Works? ....................................................... 100 B. Whether Section 514 Violates the First Amendment. .................................... 103 1. Is Section 514 Subject to First Amendment Scrutiny? ............................ 103 2. Does Section 514 Survive Heightened First Amendment Scrutiny? ...... 106 a. Does the Government’s Interest in Complying with the Berne Convention Justify Section 514? ...................................................... 106 b. Does the Government’s Interest in Promoting the Rights of United States Authors Abroad Justify Section 514? ...................... 109 c. Does the Government’s Interest in Remedying Prior Inequalities of Treatment of Foreign Authors Justify Section 514? .................................................................................................... 111 IV. GOLAN IN THE COURT: AN APPRAISAL OF THE ISSUES ............................................. 111 A. The General Inviolability of the Public Domain ............................................. 112 B. Restoration of Public Domain Works under the URAA and the Copyright Clause ................................................................................................................ 113 C. The Role of the Treaty Power ........................................................................... 115 D. Summing-Up, Ad Interim ................................................................................. 116 V. COPYRIGHT AND THE FIRST AMENDMENT .................................................................. 117 A. Twice-Told Tales ............................................................................................... 117 B. Traditional Contours of Copyright ................................................................... 122 C. Copyright, Heightened Scrutiny, and the Question of Content Neutrality .. 125 VI. ALTERNATIVES AND COMPROMISE ............................................................................ 128 A. Copyright in the Image of the First Amendment ............................................ 128 B. A Compromise in the Service of Expression .................................................... 130 VII. CONCLUSION ............................................................................................................ 131 83 [11:83 2011] The John Marshall Review of Intellectual Property Law 84 GOLAN V. HOLDER: COPYRIGHT IN THE IMAGE OF THE FIRST AMENDMENT DAVID L. LANGE, RISA J. WEAVER & SHIVEH ROXANA REED* INTRODUCTION Upon enacting the Bill of Rights, our Founders guaranteed that the federal government would make no law abridging the freedom of speech; yet, Congress routinely enacts laws that do exactly that, ostensibly in the name of some more worthy goal. In particular, the United States copyright laws are, quite simply, government-sanctioned abridgements of speech. While the courts have consistently declined to view copyright law in this light, the fact remains that our freedom of expression is severely constrained by the monopolies granted by the government to individuals and institutions in the form of copyrights. The stated purpose of copyright (and patents) is “[t]o promote the Progress of Science and useful Arts . .”1 Progress is achieved when the public benefits from the creativity of others, by building on what has come before to further create. Progress is achieved when a group of student musicians spends months practicing a complicated symphony composed by Dmitri Shostakovich and performs that symphony for family and classmates, each member of the orchestra contributing his own expressive qualities to the notes written by a Russian composer they never met. Is progress achieved when Congress suddenly tells those musicians that the symphony previously made freely available to them through the public domain is no longer available because it has decided to “restore” Mr. Shostakovich’s copyright?2 * © David L. Lange, Risa J. Weaver & Shiveh Roxana Reed 2011. David L. Lange is the Melvin G. Shimm Professor of Law at the Duke University School of Law, where he has been a member of the faculty for more than forty years. Risa J. Weaver graduated cum laude from Duke University School of Law in 2010. She also holds a bachelor of arts degree in European history from Case Western Reserve University. She is a member of the State Bar of California and currently works for the University of California, Los Angeles. She would like to thank her coauthors for their camaraderie and friendship. The opinions stated in this article belong solely to the authors and should not be attributed to the University of California. Shiveh Roxana Reed is a third-year law student at Duke University School of Law, where she is the Senior Notes Editor of the Duke Law Journal. She holds a bachelor of arts degree in French and history with honors from Wellesley College. She would like to thank her coauthors for their engaging discussions and debates throughout the writing process. This essay may be freely reused under the Creative Commons Attribution 3.0 United States license, http://creativecommons.org/licenses/by/3.0/us/. Attribution must include the recommended citation and indicate that the Article was originally published in The John Marshall Review of Intellectual Property Law. Cite as David L. Lange, Risa J. Weaver & Shiveh Roxana Reed, Golan v. Holder: Copyright in the Image of the First Amendment, 11 J. Marshall Rev. Intell. Prop. L. 83 (2011). 1 U.S. CONST. art. I, § 8, cl. 8. 2 A copyright, one might add, that Mr. Shostakovich never, in fact, possessed because the United States did not have copyright relations with the Soviet Union at the time of the symphony’s composition. How can one restore what never existed? See Golan v. Holder, 609 F.3d 1076, 1095 [11:83 2011] Golan v. Holder: 85 Copyright in the Image of the First Amendment The statute that allows Congress to effect this restoration is section 104A of the Copyright Act of 1976, which was added after the United States signed the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) in 1994.3 Section 104A restores copyright protection to works by foreign authors who previously lost (or never had) U.S. copyright protection for their works because they did not comply with United States